U-Turn: Court of Appeal Decides National Minimum Wage For Sleep In Shifts Not Applicable

Last Friday, the Court of Appeal made the controversial decision that National Minimum Wage regulations do not apply for the hours carers are sleeping, whilst they are on-call at a client’s home. The judgment came from the Royal Mencap Society v Claire Tomlinson Blake case, however concluded that carers are just seen to be ‘available’ for work and are not classed as working, whilst they are sleeping.

This is another significant blow for the care sector which goes further into crisis following council cutbacks, the closure of care homes and over 1.4 million vulnerable people being forgotten about. Last year, staff turnover was at 50%, fewer EU staff were being recruited and a third of care homes were rated as ‘inadequate’ by the Care Quality Commission. Previously carers got double pay, which has now been cut by £30 a night.

It is questioned whether judges have even bothered to consider how challenging working in a care home can be, as carers deal with difficult people who may have dementia or mental health issues. If the judges had to step into a carers shoes, they’d soon realise the bleak reality which is that there are not enough night carers, so exhausted carers are usually on their feet all night, getting little or no sleep. So, although they may be sleeping on the job, it still feels like they are at work as they may have to deal with client’s who need help going to the bathroom several times in one night.

Carers who were expecting back-pay may now not get that either. The charity Mencap insisted that carers should be paid the National Minimum Wage for every hour that they are working. In 2014, a judgment was passed which ordered care homes to pay the HMRC, six years’ worth of back-pay for breach of contract claims, which as a result has led to a staggering £400m bill for charities and private care homes. Over the last decade, almost a thousand care homes have closed. If the Government had paid the back-pay bill, the Mencap case would have been withdrawn and carers wouldn’t be left suffering from pay cuts.

Despite the issue of people now living longer and a growing elderly population, the care sector continues to be a victim of neglect, as green papers on social care are postponed until autumn this year. Due to the continued lack of funding for social care, the Government continues to think that it’s acceptable to expect the elderly to sell their own homes to fund their own social care costs. In an ideal world, people would like a tax-funded scheme. However, this would mean that a less well-off younger generation would have to pay the price.

In a deepening social care crisis, the Government has halted public spending to its lowest proportion of GDP since the war and so there continues to not be enough hospital beds, the needs of the vulnerable continue to be ignored and care workers yet again become victims of exploitation.

Labour understand that good care is reliant on having well-paid and well-trained care staff. The Government needs to act fast and try to change the rules on the National Minimum Wage, if it is to help a sector which is already in turmoil, with recruitment and retention issues now likely to get even worse.